May 17, 2018

Kennedy, Grassley, and Roe v. Wade

There is growing speculation that Justice Anthony Kennedy, a frequent swing vote on the Supreme Court, may retire next month when the Court’s current term ends.

No one but Kennedy knows his true plans, but few would be surprised if he announces his retirement. He will soon turn 82, close to the age when most modern Supreme Court justices have retired (83 is the Court’s current average retirement age). In addition, justices tend to retire during the first two years of a like-minded president’s term, according to an empirical study by Prof. Ross Stolzenberg and Prof. James Lindgren, “Retirement and Death in Office of U.S. Supreme Court Justices.” A moderate conservative, Kennedy was appointed by a Republican president, and Republicans currently hold the White House and Senate, which would seem to make this summer a logical time for Kennedy to step down. It is also noteworthy that he joined the Court in 1988, exactly 30 years ago, the kind of round number people often like for bringing careers to a close.

The Kennedy retirement speculation intensified in the last few days thanks to two interesting pronouncements by Senator Charles Grassley of Iowa, the chairman of the Senate Judiciary Committee.

Grassley clearly wants Kennedy to retire immediately rather than a year or two from now. It is not entirely clear why the senator is in such a hurry. After all, Republicans will hold the White House for at least the next two and a half years, and the 2018 Senate map is highly unfavorable for the Democrats, making it quite likely the GOP will maintain its Senate majority. So why is Grassley pushing for a Kennedy retirement in 2018?

But another reason why Grassley might want Kennedy to retire in the next few weeks could be an abortion law recently enacted here in Iowa, Grassley’s home state. Two weeks ago Iowa Governor Kim Reynolds signed into law the most restrictive abortion bill in the country, banning most abortions after a fetal heartbeat is detected. The new Iowa law—which includes very limited exceptions for rape, incest, severe fetal abnormalities, and the life of the mother—is a direct challenge to the 1973 Supreme Court ruling in Roe v. Wade and the 1992 Supreme Court decision in Planned Parenthood of Southeastern Pennsylvania v. Casey. In Casey, the Court reaffirmed “Roe’s essential holding” that a woman has a right “to choose to have an abortion before viability and to obtain it without undue interference from the State.”

As long as Kennedy remains on the Supreme Court, the Iowa law is certain to be struck down. Kennedy not only joined the 5-justice majority in Casey, but also the 5-justice majority in the 2016 case of Whole Woman’s Health v. Hellerstedt. The Whole Woman’s Health case arose from a Texas law that required abortion providers to have admitting privileges at a hospital located within 30 miles of their abortion facility. In addition, the statute mandated that abortion centers meet the same requirements as ambulatory surgery centers. In striking down the law, Kennedy and the four liberal justices concluded that by reducing the number of abortion facilities from 40 to 20 (and potentially down to 8 under the surgical center requirements), the Texas law imposed an undue burden on the right to an abortion.

When it comes to restricting abortion access, the Iowa law obviously goes far beyond the invalidated Texas law. The Roe, Casey, and Whole Woman’s Health precedents thus leave no mystery as to the fate of the Iowa statute. Under current Supreme Court precedent, the Iowa fetal heartbeat bill is unconstitutional.

An Anti-Roe Majority?

But if Kennedy steps down, the constitutional analysis could change dramatically. President Trump will undoubtedly replace him with a pro-life justice hostile to Roe—as the president has promised. In that event, the Iowa fetal heartbeat law could ultimately bring the era of Roe v. Wade to an end. The reason is because three of the current justices seem highly likely to overturn Roe and Casey—Clarence Thomas, Samuel Alito, and Neil Gorsuch—and a fourth, John Roberts, could potentially join them. Put those four justices together with a new, anti-Roe justice to replace Kennedy and there would potentially be a 5 justice, anti-Roe majority on the Supreme Court.

It goes without saying that we cannot be certain how all of the justices would rule if the Iowa heartbeat bill reaches the high court. Roberts, in particular, is sometimes a hard justice to read. He famously broke with the conservatives in the NFIB v. Sebelius case by ruling that the Affordable Care Act’s individual mandate was a tax, a decision that saved the Obama Administration’s signature domestic policy achievement. Moreover, in a major constitutional case 8 years ago, Roberts emphasized the importance of respecting long-standing precedents, explaining that “[f]idelity to precedent—the policy of stare decisis—is vital to the proper exercise of the judicial function.”

But, somewhat ironically, he made that statement in his concurring opinion in Citizens United v. Federal Election Commission, a case in which he and 4 other justices (including Kennedy, who wrote the Court’s opinion) overturned a 20-year-old Supreme Court precedent upholding contribution limits on corporate independent expenditures. In his Citizens United concurrence, Roberts explained why he did not support stare decisis in all cases:

At a minimum, the Roberts concurrence in Citizens United made clear that he does not think long-standing constitutional precedents are untouchable. Add in the fact that Roberts is a consistent conservative who voted with the dissenters in Whole Woman’s Health, and the possibility grows that Kennedy may turn out to be the decisive swing vote preserving Roe and Casey.

If that is indeed the case, it may explain Grassley’s overt effort to persuade Kennedy to retire now, not later. There is no doubt that the senator, a long-time opponent of abortion, strongly supports the fetal heartbeat law. In fact, during an interview with a Des Moines television station last week, Senator Grassley applauded the governor for signing the bill.

Abortion is one of many major constitutional issues that could come out very differently in a post-Kennedy era on the Supreme Court. June 21, the last conference of the Court’s 2017-18 term, thus looms large on the calendar. If Kennedy intends to retire, one would expect an announcement by then.

Comments

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For the sake of the country, I sincerely hope Justice Kennedy stays on as long as possible. A supreme court nomination fight in the middle of a midterm election (and possible criminal/misconduct allegations against the president*) would be even more of a mess than the current DC dysfunction. And to say that "justices tend to retire during the first two years of a like-minded president’s term" would, to me, mean that he is less likely to leave than otherwise, because Trump and Kennedy are, under no meaning of the phrase, "like minded." (similar to Stevens and his timing of retirement, rather than, say, Rehnquist).

Thank you for your comment, Anon, and that is a great point about Justice Stevens, who was appointed by the Republican Gerald Ford but chose to retire during the presidency of the Democrat Barack Obama. However, my guess--and it's only a guess--is that Kennedy would prefer to have a Republican president select his replacement rather than a Democratic president. On balance, Kennedy has a mostly conservative voting record (with the exception of some high profile social issues, such as abortion and same-sex marriage). Thus far, Trump's judicial selections have been reliably conservative. So my gut tells me that Trump and Kennedy are "like-minded" or at least "similarly minded" in terms of the kind of justices they would like to see on the Court. But I absolutely could be wrong. As Yogi Berra said, predictions are hard, especially about the future! Thanks again for your comment.

"Few would be surprised"? Sorry, I couldn't disagree more: my impression is that a hefty *majority* of longtime close Scotus observers do NOT expect an AMK retirement this summer. And the attention focused on the Iowa bill is just *WAY* overblown. It'll be struck down by the Iowa Supreme Court on independent state grounds & will never even *begin* to make its way towards Scotus in the federal courts. The "sky is faling" perspective on Roe (& Casey) has again & again & again been wrong for ca. 40 years now, though the 'reputational' damage Roe has suffered from this in my mind far outweighs the short-term pro-choice donor-frightening interests that have often motivated it...

Can we all stop feeding the rumor-mongering frenzy about this? Kennedy has hired his clerks for next Term and has given no indication--none--that he's done. (His age and tenure are not good indices, unless we are going to go through this silly speculation every year, sometimes for multiple justices.) He guards his intentions closely, so it's highly unlikely that Grassley's political theater is based on insider information. And though it's true he's suggested he would like to be replaced by a Republican president, there's no indication he'd like to be replaced by THIS Republican president, at least not with a Republican-controlled Senate. Yes, he could certainly retire at any time. But the truth is that this is all just speculation. Let's not indulge today's propensity for clickbaity "journalism."

Thank you for your great comment, Dave. You are absolutely right that I was dead wrong to say "few would be surprised." Obviously, many people would be surprised! So I second your motion that I was completely wrong about that.

As for your really interesting point about the Iowa Supreme Court, you very well may be right about the adequate and independent state grounds issue. But I would point out that one of the moderate justices on the state supreme court (Justice Zager, who sometimes sides with the conservatives but not always, sort of like Justice Kennedy) just announced his retirement. In addition, two weeks ago the court announced that Justice Hecht (a Democratic appointee) was diagnosed with melanoma. So it is not clear what the court's ideological make up will look like by the time the ACLU/Planned Parenthood case reaches the Iowa supreme court.

Thank you for your comment, "I Like Real News." Your point about Kennedy hiring clerks for the 2018-19 term is an important one.

However, it's interesting to note that when Justice Gorsuch clerked for Kennedy, he was actually originally hired by Justice White, who retired in 1993 just before Gorsuch arrived for his clerkship. So if the past practices of retiring justices are any indication, it's not necessarily the case that hiring clerks for the next term conclusively establishes Kennedy's intentions. But I agree with you that it is certainly one indication that he may stay on for another term.